Docket No: 2609-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USN, XXX-XX- Ref: (a) 10 U.S.C. § 1552 (b) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder,” of 3 September 2014 (Hagel Memo) (c) PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records by Veterans Claiming PTSD or TBI,” of 24 February 2016 (d USD Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” of 25 August 2017 (Kurta Memo) (e) USECDEF Memo, “Guidance to Military Discharge Review Boards and Boards for C orrection of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Wilkie Memo) Encl: (1) DD Form 149 with attachments (2) Case summary 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected to upgrade his characterization of service and to make other conforming changes to his DD Form 214. 2. The Board, consisting of, reviewed Petitioner's allegations of error and injustice on 9 April 2021, and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of Petitioner’s application together with all material submitted in support thereof, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). Additionally, the Board also considered an advisory opinion (AO) furnished by qualified mental health provider. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interests of justice to review the application on its merits. c. The Board determined that Petitioner’s personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered Petitioner’s case based on the evidence of record. d. The Petitioner enlisted in the Marine Corps and began a period of active service on 11 December 1979. Petitioner admitted to pre-service convictions for marijuana possession, damage to property, and DUI (twice), as well as pre-service drug use on his enlistment application. e. On 8 July 1980 Petitioner received non-judicial punishment (NJP) for failing to obey a lawful order. On 15 October 1980 Petitioner received NJP for assault consummated by a battery on a fellow shipmate. On 16 October 1980 Petitioner’s command issued him a “Page 13” counseling sheet and retention warning (Page 13) for his frequent involvement of a discreditable nature with military authorities. The Page 13 expressly warned Petitioner that if he is the subject of future disciplinary proceedings, he may be processed for an undesirable discharge. f. On 28 July 1981 Petitioner received NJP for four specifications of unauthorized absence (UA) and received another Page 13 warning. On 18 December 1981 Petitioner was convicted at a Summary Court-Martial of two specifications of disobeying a lawful order, drunk and disorderly conduct aboard ship, and willfully and wrongfully spilling and spraying paint in a squadron space. On 18 April 1982 Petitioner received NJP for UA and also received another Page 13 warning. On 30 June 1982 Petitioner received NJP for UA. g. On 15 July 1982 Petitioner was notified he was being processed for an administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities. Petitioner expressly waived his rights to consult with counsel, submit a written statement, and to request a hearing before an administrative separation board. In the interim, at Petitioner’s separation physical examination no psychiatric or neurologic conditions or symptoms were noted. Ultimately, on 20 August 1982 Petitioner was discharged for misconduct due to a pattern of misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. h. In short, Petitioner contended that he was suffering from service-connected PTSD related to a serious plane crash involving multiple fatalities and dozens of severe injuries on board his aircraft carrier in May 1981. Petitioner participated in damage control efforts immediately following the crash and was injured during his efforts. The Petitioner argued that the Board must view his mental health condition as a mitigating factor to the misconduct underlying his discharge and upgrade his characterization of service. i. As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed Petitioner’s contentions and the available records, and issued an AO on 25 March 2021. The MD initially observed that shortly after the trauma, Petitioner experienced increasing nightmares, flashbacks, insomnia, mood instability with depression, and marked increase in his alcohol abuse. The MD noted that such psychological symptoms and behavioral changes were consistent with PTSD and contributed to the increasing misconduct for which Petitioner was eventually discharged with an OTH. The MD also noted that Petitioner presented multiple post-discharge clinical records documenting diagnoses of PTSD, major depression, alcohol dependence, panic disorder, all consistently documenting the events of May 1981 as the origin of his mental health conditions and progression of his PTSD and depressive symptoms. The MD further noted that the Social Security Administration granted Petitioner disability benefits for service-connected PTSD. The MD concluded by opining that preponderance of objective evidence established Petitioner suffered from PTSD at the time of his military service, and that his in-service misconduct following the aircraft crash could be attributed to PTSD. CONCLUSION: Upon review and liberal consideration of all the evidence of record and in light of the favorable AO, the Board concluded that Petitioner’s request warrants relief. Additionally, the Board reviewed his application under the guidance provided in the Hagel, Kurta, and Wilkie Memos. Specifically, the Board considered whether his application was the type that was intended to be covered by these policies. In keeping with the letter and spirit of the Hagel, Kurta, and Wilkie Memos, the Board felt that Petitioner’s PTSD and his other mental health conditions mitigated the misconduct used to characterize his discharge. The Board concluded that the Petitioner’s PSTD-related conditions and/or symptoms as possible causative factors in the misconduct underlying his discharge and characterization were not outweighed by the severity of Petitioner’s misconduct. With that being determined, the Board concluded that no useful purpose is served by continuing to characterize the Petitioner’s service as having been under OTH conditions, and that a discharge upgrade to “Honorable” is appropriate at this time. Additionally, in light of the Wilkie Memo, the Board still similarly concluded after reviewing the record holistically, and given the totality of the circumstances and purely as a matter of clemency, that the Petitioner merits a discharge upgrade. RECOMMENDATION: In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. That Petitioner’s character of service be changed to “Honorable,” the narrative reason for separation should be changed to “Secretarial Authority,” the separation authority be changed to “MILPERSMAN 1910-164,” the separation code be changed to “JFF,” and the reentry code be changed to “RE-1J.” Petitioner shall be issued a new DD Form 214, Certificate of Release or Discharge from Active Duty. That a copy of this report of proceedings be filed in Petitioner’s naval record. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.